Aids to Interpretation by Dr Lal Tanwani

A) Internal Aids:

1)Title

2)Preamble

3)Heading and Marginal Notes

4)Sections and Subsections

5)Punctuation Marks

6)Illustrations

7)Exceptions

8)Explanations

9)Provisos

10)Saving Clauses

11)Schedules

12)Non–Obstante Clause

 

A) Internal Aids:

A Statute is framed by the competent legislature. Besides its various sections, it contains many other parts. These parts of the Statute are sometimes used to interpret the law and hence they are called internal aids of interpretation.

 

1.Title:

Every Act is called by its own name. The short title of the Act is the nick-name given to the Act for the purpose of reference. Short title is generally given only for the purpose of the identification.

For example: The Indian Penal Code,1860.

Long title is an internal part of the Statute and is admissible as an aid to its construction. A Statute is headed by along title and it gives the description about the object of the Act.

 

2.Preamble:

The Preamble being a part of the Statute, can be read along with other parts of the Act to find out the meaning of the words in the enacting provisions and to decide whether they are clear or ambiguous.

Preamble in itself is not an enacting provision. The utility of the Preamble vanishes on the clarity of the provisions in the Act.

 

3.Headings and Marginal Notes:

Headings are given to the Sections or a set of Sections or a particular group of Sections that deal with a particular subject matter or a particular circumstances. Headings are treated as Preambles to the Sections coming under it. Headings are not inserted by the legislature, but by the Draftsman.        

 

Marginal Notes:

Marginal notes are also called side notes. In fact, they are inserted at the die of the Section. These notes give the object and purpose of the Section to which it is appended.

Marginal notes clarify the meaning of the Section. It is just like a key to the Section.

If the language of the Section is clear, marginal notes cannot be used to control the clear language of the Section.

 

4)Sections and Sub Sections:

Sections and sub-sections are the provisions of the Statute. Language of the Sections and Sub–sections depend upon the subject matter upon which Statute is framed.

Whenever any particular problem is brought before the judiciary on the particular subject matter, Sections and sub–sections of an Act which are applicable to that problem are considered and interpreted to give judgment in the case.

 

5) Punctuation Marks:

Punctuation means, the right use of the punctuation marks in a sentence.

The object of punctuation mark is to convey the clear and unambiguous meaning of the written text

 

6)Illustrations, Exceptions, Provisos and Saving Clauses:

Illustrations are inserted by the legislature and hence they are key to open the mind of framers and show their intention.

Illustrations are valuable aid in interpreting and understanding of the Section.

 

Exceptions:

Exceptions are appended to the Sections to exclude something which would otherwise fall under the purview of the Section. An exception is an exemption.

 

Provisos:

Proviso are appended to Section of the Statute. Words provided that, provided further that are used to denote the proviso.

Provisos are clauses of exceptions or qualifications in an Act.

 

Proviso is a clause, which generally contains a condition that, a certain thing shall or shall not be done in order that something in another clause shall take effect.

 

Saving Clause:

Saving clause is used to preserve certain rights, remedies or privileges already existing, from being destroyed.

Saving means all the rights of the party are preserved. No new right is conferred upon him by the saving clause.

 

7)Schedules:

Schedules attached to the Statute, form the part of the Act. Schedules are drafted by the legislature to clarify the detailed provisions of one Section or one or more sections or for entire Act.

Section 3(48) of the General Clauses Act,1897defines Schedules as, “Schedule means a Schedule to the Actor Regulation in which the word occurs.”

Schedules are placed at the end of the Act. Schedules deal with the manner in which the rights or claims under the Act are to be asserted.

 

8)Non–obstante Clause:

Non-obstante clause is a device of the legislature. It gives the over riding effect to some provisions of an Act and overcomes contrary provisions that may be found in the same enactments or some other enactment.

Non-obstante clause is incorporated to avoid the effects and operation of all the contrary provisions.

 

II)External Aids:

The aids of interpretation which are not parts of the Statute, are known as External or Extrinsic Aids of interpretation. When the Statute is ambiguous, help can be taken from the External Aids to interpret the Statutes.

 

1)Dictionaries: Dictionaries is an External Aid of interpretation. When a word used the Statute, is not defined in the Act, reference can be made to a dictionary to find out the meaning of the word in general sense which is commonly understood. Whenever the Court needs to understand the general sense of the word, reference to dictionary can be made.

 

2)Translations: Translations means, the transformation of text from one language to another. From English to Hindi or vice-versa. As per Article 348 of the Constitution of India, the language of the Supreme Court and every High Court shall be English. As per Article 348(1)(b) an Authoritative Text shall be in English.

 

3)R. Travaux Preparation: It includes parliamentary history, public opinion and surrounding circumstances. R. Travaux Preparation includes 3 things in its fold. They are:

a) Surrounding Circumstances

b)State of the law and

c)Parliamentary history.

All the tree aspects taken together for interpretation is known as R. Travaux Preparation.

 

4)Statutes in Pari Materia:

The word pari means same and materia means matter. Thus together the word pari materia, means the Statutes dealing with the same subject matter or forming the part of the same system.

When the Statute is ambiguous, the intention of the legislature may be determined from the Statutes in pari materia i.e. the Statutes dealing with the same subject matter.

5) Contemporanea Expositio:

It is  based on the maxim which is as under:

“Contemporanea exposition est optima environment fortissima in lege. It  means that, the best way to construe a document, is to read it as it would have read when made.

This maxim means, usage or practice developed under the Statute, indicates the meaning assigned to its words by contemporary opinion. Contemporanea Expositio is an important External Aid of interpretation of Statutes.

6)Debates, Inquiry Commission Reports, and Law

Commission Reports:

Debates:

Any Act before it is passed, is thoroughly discussed on the floor of  the Parliament or the State legislature. Traditionally the Courts used to consider the legislative debates or a Statute to know its true context. But in modern times, such debates are not admitted as an aid to interpretation.

Inquiry Commission Reports:

A Commission may be appointed by the Parliament to inquire in to the evil or defect, for which the Parliament wants to enact a law. The Inquiry Commission studies the prevalent circumstances about the defect and submits its report to the Parliament.

The Parliament on the report of the Inquiry Commission, drafts the Bill to remedy the defect.

Law Commission Reports:

The function of the Law Commission is to monitor the working of the enactment.

Law Commission submits its report to the legislature from time to time. Based on the report of the Law Commission, Parliament decides about the Amendment, Repeal, etc. of the Act.

When the Law Commission submits its report to the Parliament, it becomes the accurate source of information or determination of the defect that is remedied by enacting the law.

 - Lal Tanwani 

 

International Law is a True, But a Weak Law by Dr Lal Tanwani

  Meaning Of International Law

Every society, irrespective of its population, makes a legal framework (law) under which it functions and develops. It is permissive in nature as it allows individuals to form legal relations with rights and duties and restrictive in nature as it punishes the wrong-doers. These laws are referred to as Municipal laws. The world today requires a framework through which interstate relations can be developed. International Laws fill the gap for this.

The term ‘International law’, also referred to as Laws of Nations was first coined by Jeramy Bentham in 1780. Every country is referred to as ‘state’ in International Law.

The modern international law system is a product of only the past four hundred years bearing witness to the influence of various writers and jurists of sixteen to eighteenth century, who formulated some of its most fundamental principles. 

International laws are a set of rules, agreements and treaties that are binding between countries. Countries come together to make binding rules that they believe will benefit the citizens. It is an independent system of law existing outside the legal framework of a particular state.

INTERNATIONAL LAW IS A TRUE LAW:

International law is a true law because World is an international community, the conduct of the members of a community are regulated by the rules. These rules can be in the form of custom and treaties. The members of community have the consent for these rules which regulate their conduct. The international community consists of various states. These states accept that the rules of international law binding upon them. 

Following laws are observed by the states without the instance of breach of any of them

a) Rules of immunity to diplomatic agent.

b) The laws of warfare.

The rules of international law are generally observed by the states. If these laws were breached, there would be a chaos in the world community. International law has been incorporated as a part of law of land in their Constitution by many states

Although, the international law is a true law, but it is a weak law. The rules of international law are not as effective as the rules of municipal laws. International law is generally observed for the purpose of peace for relations and co-operating among the states.

International law is a weak law because of the following grounds

1) Rules of international law exist due to international treaties and customs. They are not as efficient as the state legislative machinery.

2) Sometimes, the formulation of treaties and customs gives very wide option to the states which are parties to it.

3) There is no court which can decide all the legal dispute between all the states. The International Court of Justice although exists, it acts only with the consent of states. Hence, it has no jurisdiction to decide the disputes of all the states.

4) There are no effective measures for the enforcement of international law

5) International laws are violated by states, on many occasions, especially during war.

6) Some of the units of international community are very strong. Hence, it is not possible to compel the observance of international law by these units. Because of these reasons, it can be said that the international law is a weak law.

Dr. Lal Tanwani

State ? As per International Law by Dr. Lal Tanwani

  What is State?

The term state has different meaning in constitutional law, than that in the international law. Under international law. state means a territory occupied by the society of man where the members of society are governed by the government, and such government has capacity to enter into relations with other entities An entity possessing above attributes can be termed as a state. Montevideo Convention on the Rights of Duties of States, 1993, laid down certain qualifications for an entity to be called as a state.

 

Accordingly, a state should possess following qualifications –

1) A permanent population

2) A defined territory

3) A government

4) Capacity to enter into relations with other states.

Thus, as per Montevideo Convention, if an entity possesses all the above four attributes, it can be called as a state.

 

1) Permanent population:

The term 'population' means, people. People are those individuals who live together as a community. The people may belong to different races, creeds or cultures. They may be also of different colours. The population must be permanent i.e. the people must be linked to a specific territory on a permanent basis, i.e. who can be said to be inhabitants of that territory. A territory in which the population exist in a haphazard way is not the state. The state should have a permanent population.

 

2) A defined territory

An entity to be called as a state. it must have a defined territory. The size of a territory does not matter. A Territory can be either small or large. Even though Montevideo Convention laid down that the territory should be a defined territory. Defined territory does not mean that, the territory of the state must be certain. At present there is a dispute between the numbers of states over the extent of the border of their state, but they are still defined as states. For example, Israel does not have a fixed territory, but it is still called the state. The term 'population' means, people. People are those individuals who live together as a community. The people may belong to different races, creeds or cultures. They may be also of different colours. The population must be permanent i.e. the people must be linked to a specific territory on a permanent basis, i.e. who can be said to be inhabitants of that territory. A territory in which the population exist in a haphazard way is not the state. The state should have a permanent population.

 

3) Government

The entity having population and territory, must be governed by a government. The state should have a8overnment. If the state does not have a government, it shall not be called as a state. All the activities of state are carried out by the government. It is not necessary that the government should be an effective government. Government can be of the following types

a) De-jure government;

b) De-facto government;

c) Military government; and

d) Government in exile. Thus, a state should have government.

 

4) Capacity to enter into relations with other States

In order to be called as the state under international law, an entity must have the capacity to enter into relations with other states. If the state is not capable of entering into relations with other states, then it shall not be called as a state. 

 Dr. Lal Tanwani

 

 

 

Presentation on criminal procedure code by Dr Lal Tanwani

  Introduction 

The whole judiciary is seen with due respect and every person has faith in the judiciary that whoever will come before the judiciary will get justice. The court should practice without discrimination and bias. Justice should be given in such a manner that a clear image of the judiciary has to be maintained in the minds of people. In order to have good faith on the court, the court should maintain high moral standards between the members of the judiciary under the Code of criminal procedure and Civil procedure. Justice can be achieved only when the court deals in presence of both the parties and the court has the power to move cases from one court to another.  But the right of the plaintiff cannot be curtailed, controlled or interfered. In civil procedure, the jurisdiction of a civil court is at the root of any civil suit. It is the primary criterion in which the civil court can give the judgement.

Nature, scope and objective

The nature of the transfer of case depends upon the power of transfer suits and cases in civil and criminal law-

The power of the court to transfer suit has the following features-

The power is limited where more than one court is competent to entertain the suits and plaintiff has filed in one of such courts.

The power is not available when the plaintiff is suing on a contract which contains “Forum Shopping Clause”.

The application under Section 22 can be filed only by one defendant and it has to be filed by single defendant even when there are multiple defendants.

All the parties to the suit (except the applicant) have the right to file objection to transfer the application considering all the objections of the court. The superior court shall determine the most appropriate court for settling disputes.

Scope of Transfer Of Cases Under Civil Procedure Code

Section 24(1) High Court or District Court can transfer and withdraw any case on the application of any of the parties at any stage of the suit whether on pending or appeal proceedings. But the transfer of cases in any court the court in which case is transferred should be competent to deal with that case. The High Court also has the power to withdraw the case from any court and transfer it to any other court. Either within the same appellate court or under a different appellate court the case will be within the scope of the same high court or it can be within the jurisdiction of other High courts.

Objective Of Transfer Of Civil Suits

The main intention behind the transfer of cases is delivering justice or for deciding matters which address public sentiments. There are various provisions regarding appeal but this will create pressure on the mechanism of judiciary and will result in delayed justice. But the statute has created such a system so that the problems do not occur i.e the hierarchy of the court. The transfer of cases is a provision that helps to maintain the faith of the judiciary amongst the general public.

Who may apply?

In Section 22 of CPC, the plaintiff has the right to file a case in any competent court and when the defendant gets to know the purpose of application he may apply for the transfer of the case. The court may also consider the objection if any, made by the plaintiff in relation to such transfer. And further, after the clearance of the objection, the court will transfer the case in a court that is competent to deal with that case.

Section 22 and 23 are related to each other. Section 22 defines the power of the defendant to apply for the cases and section 23 lays down the conditions where the application of transfer can be made.

Conditions

The suit or other proceeding must have been pending in a court competent to try it.

The transfer court must be subordinate to the court making transfer order.

The transferee court should be competent to try or dispose of the suit, where competency does not only include pecuniary but also territorial competency.

To which court application lies

It is dealt under Section 23.

Where the several courts having jurisdiction subordinate to the same appellate court then an application u/s 22, shall be made to the appellate court.

Where such courts are subordinates to different appellate courts but to the same high court then the application shall be made to the high court.

Where such Courts are subordinate to different courts within the local limits of whose jurisdiction the court in which suit is brought is situated.

Grounds for transfer:

Notice:

According to Section 22 of the CPC, it is mandatory to mention the time  and then give notice of the application. Notice should be given to all the parties pleading in the suit, whether it is plaintiff or defendant and merely to the opposite parties only. Under the provisions of section 22 notice of the application must be given to each and every party of the suit and to the court before which it is made. But it has been held that the defect could be cured by notice on application itself.

Hearing of objections

Section 21 of CPC no objection to jurisdiction as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.

Section 22 of CPC gives power to transfer suits which may be instituted in more than one court-  where a suit may be instituted in any one of the two or more courts and is instituted in one of such courts, any defendant after notice to the other parties may at least get possible opportunity and in all cases where issues are settled at or before such settlement apply to have the suit was transferred to another court and the court to which the application is made, after considering the objections of the other parties (if any) shall determine in which of the several courts having jurisdiction of the suit will proceed.

Suo Motu transfer

Under Section 24 of Civil Procedure Code, the jurisdiction is exercised in the matter of transfer of a lawsuit, appeal or revision by the High Court and District Court is not bound by any application produced by any of the parties. Judges of the High Court and District Courts have discretionary powers in the matter of suo moto. Under section 24 of the CPC the High Court may, on the application received by any of the parties for the transfer of suit may move the application from one court to another.

Section 24 does not specify any ground in which the case can be moved from one court to another but there are certain principles and grounds which have to be followed for transfer of cases from one court to another.

Consideration of facts and law has to be taken into account for transfer of cases.

Section 24 also empowers High Court to move cases from one court to another.

Dr. Lal Tanwani